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Rainey v. City of Alvin9/7/1995
he court noted section 101.021(2) includes the proviso that a governmental unit is liable if it would, "were it a private person, be liable to the claimant according to Texas law." Id. The proper inquiry under section 101.021(2) therefore requires a court to recognize that "were it a private person, the governmental unit would be entitled to assert any affirmative defenses its employee has to liability." Id. In DeWitt, the court held Harris County was not liable under section 101.021(2) for the negligence of its employee when the employee has no liability because of official immunity. Id. at 919.
We must therefore consider whether Esquivel is entitled to official immunity. Government employees, such as peace officers, are entitled to immunity from suit arising from the performance of (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994); Font v. Carr, 867 S.W.2d 873, 879 (Tex. App. -- Houston [1st Dist.] 1993, writ dism'd w.o.j.). The question of an officer's individual negligence is immaterial when determining whether he was performing discretionary functions. Vasquez v. Hernandez, 844 S.W.2d 802, 804 (Tex. App. -- San Antonio 1992, writ dism'd w.o.j.). As the supreme court has noted, " he complex policy judgment reflected by the doctrine of official immunity, if it is to mean anything, protects officers from suit even if they acted negligently." Chambers, 883 S.W.2d at 655. Wofford concedes that Esquivel was acting within the scope of his authority as a peace officer, which is the third element of the Chambers test. Wofford, however, contests the first two elements:
whether Esquivel was (1) performing a discretionary function and (2) acting in good faith.
Actions requiring personal deliberation, decision, and judgment are considered discretionary; those actions which require obedience to orders or the performance of a duty to which the actor has no choice are ministerial. Chambers, 883 S.W.2d at 654; Wyse v. Department of Pub. Safety, 733 S.W.2d 224, 227 (Tex. App. -- Waco 1986, writ ref'd n.r.e.). The investigatory duties of peace officers have been held to fall within those actions considered discretionary. Wyse, 733 S.W.2d at 227. An officer's decision concerning when and how to arrest a suspect is considered a discretionary act. Texas Dep't of Pub. Safety v. Perez, No. 14-94-00055-CV, slip op. at 4-6 (Tex. App. -- Houston [14th Dist.], Aug. 3, 1995, n.w.h.); Dent v. City of Dallas, 729 S.W.2d 114, 117 (Tex. App. -- Dallas 1986, writ ref'd n.r.e.), cert. denied, 485 U.S. 977, 108 S. Ct. 1272 (1988).
Wofford attempts to characterize the actions in question as the shooting itself. We do not agree with this narrow characterization, however, and we conclude that the actions were Rainey's apprehension and arrest. If we were to focus solely on the alleged negligent shooting itself, then we would effectively nullify official immunity. We hold the summary judgement evidence supports the conclusion that, as a matter of law, Esquivel was performing a discretionary act in apprehending and arresting Rainey.
We turn now to the final element of official immunity, whether the official was acting in good faith. The question then is whether Esquivel acted in good faith when he apprehended and arrested Rainey, and more specifically, when Esquivel held his weapon behind Rainey's head.
In Chambers, a case involving a high speed chase, the supreme court held that an officer acts in good faith in a pursuit case if "a reasonably prudent officer, under the same or similar circumstances, could have believed that the need to immediately apprehen
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